Chamber and committees

That is an important point, and it is why we have the safeguards in place to ensure that they are not directional powers but regulations—regulations that will be reviewed and that will receive parliamentary scrutiny. It is important to have safeguards within those measures, but I think that it is right that the Government and the Parliament are able to pass those measures to allow us to get ready for the worst-case scenarios that may happen.

Absolutely. If the bill is passed, any regulations that we made would apply for a specified period. Regardless of that, they would also be subject to review every 21 days for as long as they were in force. Again, that is one of the important safeguarding measures in the bill. I do not think that any Government wants to keep anything on the statute book longer than is necessary. I appreciate that there are differences of opinion about the speed at which things were considered during the coronavirus, and the ability of Parliament to have a say on the matter during a review period is an important safeguard in that respect.

That provision is in the bill to show that we have learned lessons from the start of the pandemic. I will ask Craig Robertson to comment, because he was in post at that time—I was in another portfolio.

At that time, there was a requirement to assist students in a way that universities, the sector in general and, indeed, we were not quite ready for, and we must ensure that we are much more able to provide that assistance. Of course, there might be times when we require to prevent people from accessing student accommodation, but we take very seriously the fact that we are talking about people’s homes, that they might not have alternative accommodation, and so on. None of the regulations and changes would be made without ensuring that safeguards for students were absolutely integral to our thinking on the matter. We therefore need to think about how we protect students. Some of that will focus on what happens in halls, while some of it might involve ensuring that halls are used in the correct way at the correct time.

However, I will bring in Craig Robertson, who, as I have said, has experience of what happened at the start of the pandemic. It is important that we learn lessons about how the powers in question might be used.

I absolutely value the great partnership working that we had with the college and university sector during the pandemic. We did not find it necessary, during the pandemic—even at its height—to use the existing emergency powers to require universities, for example, to take action, and I think that that reflected our successful partnership. I very much hope that we would repeat that set of circumstances in the next pandemic or public health emergency.

However, I pose one question to the committee. If one institution decided that it felt differently from the public health advice that was coming out and that it would take a different tack from what its own sector wanted—the institutions are all independent—and we did not have any powers to ensure that we could make regulations in that regard, what would the Government do at that point?

Partnership working is great. I will always work with every sector and every institution to ensure that we work in partnership, and we will do that with the bill. However, if we got to a point at which an institution took a different tack from the public health advice that was coming out, how would we react? Institutions may be independent, but they are not independent of their communities, and they are staffed by people we need to protect. With the greatest respect for those who have appeared before the committee and said that they did not see the point in the legislation, that is the worst-case scenario for which I need to plan.

We did not get anywhere near that during this pandemic, but, if the committee can say, hand on heart, looking way into the future, that there will be no instance in which that will happen—fine; we do not need these measures. However, I do not have the benefit of looking into the future and knowing that that will never happen. Therefore, I think that the Government must have the ability to take action if we need to.

Good morning, convener. It is a pleasure to be here to discuss part 2 of the Coronavirus (Recovery and Reform) (Scotland) Bill.

We are tentatively in the recovery phase and thankful that the impact of Covid on our education system is diminishing and that the strategic framework provides a basis for many restrictions or limits to be removed. However, for the past two years, Covid has affected almost every aspect of our education system and significantly affected the experience of every pupil and student. We have been committed to protecting their interests, to protecting their health and that of the people around them and to ensuring that their learning continued and was supported as effectively as possible.

The powers that we are discussing today will provide an effective basis to ensure the continuity of education in the future. Whether we face a continued threat from coronavirus or a future public health emergency, our purpose is to ensure that we have the appropriate legal framework and powers in place to be able to react swiftly and decisively to protect children and young people.

Introducing the proposals now will ensure that they have the extensive and important parliamentary scrutiny that emergency legislation simply cannot receive. The bill can be deployed only if the strict test in it is met: that, in view of advice from the chief medical officer, the proposed action is necessary and proportionate to protect public health, and that all regulations made under it must be reviewed at least every 21 days. The bill carefully balances the powers to act quickly, if needed in the event of a future public health threat, with those important safeguards.

We have built on our experience of the powers in the United Kingdom Coronavirus Act 2020 during the pandemic and listened to the feedback from the consultation and from stakeholders. The proposals are broadly modelled on the existing powers under the UK act, but with some important differences.

First, the powers would be exercised through regulations, as opposed to ministerial direction. That introduces parliamentary scrutiny and oversight for the first time. Secondly, the main provisions focus on educational continuity. In spite of a public health emergency, continued education provision in whatever form is possible would be our priority and we do not propose a stand-alone closure power as there was in the UK act. Thirdly, we are adding a statutory guidance-making power. That will add to the set of available levers and allow us to provide advice to the system on a statutory basis without the need to use regulations.

The important safeguards that were in place under the UK act remain. That is to say, the powers can be exercised only when ministers are satisfied that they are necessary and proportionate and after regard has been given to the advice of the chief medical officer. Also, the powers can apply only for a specified period and would be subject to regular review.

I turn to the second set of measures in the bill. The Schools (Consultation) (Scotland) Act 2010 prescribes how changes to the school estate must be consulted on, including through a public meeting. The amendments in the bill establish a process so that, during a future public health emergency, local authorities would be able to apply for a direction from ministers to hold a 2010 act public meeting wholly by virtual means and to be relieved of the requirement to make hard copies of consultation documents in council offices.

That is a new proposal on which we consulted last year. It is not derived from temporary coronavirus legislation. The proposal will allow school consultations to proceed during, for example, a public health emergency, thereby avoiding delays to major school infrastructure projects without the risk of contributing to the spread of infection. However, it is important that those steps be taken only when necessary. Again, the test is that a direction may be given only when ministers are satisfied that it is necessary and proportionate to protect public health.

I welcome the opportunity to discuss that and the other proposals in the bill.

I totally appreciate where you are coming from. The evidence that has been given and the work that has been done to show the real impacts in the wider justice sphere, particularly on children and young people, has been crucial. I give a commitment and a reassurance that the concerns about how children and young people are dealt with in the justice system are important at any point, but they are more important than ever during a pandemic.

I encourage all those who have concerns with this aspect—or, indeed, any other aspect—of the bill to continue their discussions with ministers and officials in order to see whether we can alleviate some of their concerns. I hope that we can do so in relation to some of the points that the commissioner has raised. I absolutely take on board the seriousness of the commissioner’s office’s concerns and the importance of the commissioner’s views on such matters.

As I said, it is not simply the view of the Scottish Government that the bill is compatible; the statement that was provided by the Presiding Officer—

No—there are individuals and organisations that support the way forward that we are taking with the bill, including the fact that we should have a bill of this type and move forward with the measures that we have proposed.

I fully appreciate the individual concerns of various sectors, and I am sure that we will come on to discuss some of those. At that point, I will be happy to go into why—with the greatest respect for the stakeholders, with whom I work closely—I have a different opinion from theirs.

The Government is trying to prepare for worst-case scenarios, and some stakeholders—not all of them, but you have asked me a general question, so I will give you a general answer, with the caveat that this does not apply to every person who gave evidence or responded to the consultation—based their evidence on best-case scenarios. In a best-case scenario, we might find agreement within sectors about how these things could move forward and that sectors are willing to work as quickly as the Government feels that public health guidance would require.

However, I am afraid that we cannot make legislation on the basis that everything will be fine and that we will get it through in time and lives will not be lost. That is the challenge. I cannot work on the presumption that everything will work just as it did during the coronavirus. I need to work to the worst-case scenario, and unfortunately that means that some of the powers that people may feel uncomfortable with the Government having will be necessary at that time.

There is a continuation of some of the powers that were in place for te coronavirus, but there are some important changes. As I said in my opening statement, we do not have that closure power, and we are looking to keep provisions for continuity of education. The other important change that is being made is a change from direction to regulation. The legislation is certainly different, but it is modelled on what we had previously.

I will bring in my colleague Craig Robertson to answer that question. Of the officials here, he is the one who works closely with higher education.

First, though, let me say that, since I came into post, we have had an exceptionally close relationship with universities. It has been absolutely necessary for the Government to consider how the guidance impacts on universities, and we have listened carefully to them about how guidance can be developed in a consensual way with universities, trade unions and students. We have endeavoured to do that all the way through; indeed, it is always the way in which we want to work. Obviously, there have been, as you would expect, differences of opinion at various points in those discussions, but we have had a good working relationship and I would like that to continue.

You are right to point out that much of what is proposed mirrors the powers in the Coronavirus (Scotland) Act 2020. With the convener’s permission, I will bring in Craig Robertson to provide a little more detail.